There’s plenty of good news on criminal justice in Texas, but now is
not the time to stop the presses. Instead, Texas lawmakers must build on
recent achievements that have enabled Texas to realize its lowest crime
rate since 1973 and a double-digit percent drop in both the state’s
crime and incarceration rates since 2005. By better aligning policies
with research, policymakers can continue the progress in driving down
the crime rate without being too tough on taxpayers.

Building on
recent successes requires understanding the factors that contributed to
it. Two key budgetary strategies adopted in 2005 and 2007 enabled Texas
to avoid building more than 17,000 new prison beds, which the
Legislative Budget Board (LBB) had projected would be needed by 2012.
Such beds would have cost $2 billion to build and operate over five
years.

The first strategy involved appropriating $55 million in
2005 for probation departments that agreed to seek a 10 percent
reduction in the number of probationers returned to prison, and that
agreed to implement graduated sanctions. Such sanctions involve imposing
issuing swift, sure and commensurate measures (more required meetings,
extended probation terms, electronic monitoring and weekends in jail,
for example) for rules violations such as missed appointments, rather
than letting them pile up and then revoking that probationer to prison.
Most of the funding went toward reducing caseloads, which facilitated
closer supervision and the consistent application of both sanctions and
incentives. Participating probation departments have reduced
revocations, avoiding $226 million in incarceration costs.

The
second strategy was the 2007 appropriation of $241 million for prison
alternatives. This included more intermediate sanctions and substance
abuse treatment beds, drug courts, and substance abuse and mental
illness treatment slots. Capacity was also created to clear the backlog
of parolees not being released because of waiting lists for in-prison
treatment programs that must be completed as a condition of release, and
for halfway houses (paroled inmates cannot be released without a valid
home plan). The 2008-09 budget added about 7,000 beds, including
treatment beds for diverting probationers and parolees from prison,
halfway house beds and mental health pretrial diversion beds, as well as
3,000 outpatient drug treatment slots, all of which were maintained in
subsequent budgets.

Given that nearly all felonies in Texas can
result in either probation or prison, the recent drop in nonviolent
offenders directly sentenced to prison may reflect the confidence that
judges, juries and prosecutors have in the effectiveness of probation.
Also, probation and parole revocations together account for
approximately half of the annual prison intakes, and both have declined
over the last several years as supervision has been strengthened. Parole
offices have expanded the use of graduated sanctions, implemented
instant drug testing, and hired chaplains who connect willing parolees
with local religious congregations. Thus, despite there being more
parolees, the number of new crimes committed by parolees has declined
11.9 percent since 2007, contributing to a sharp reduction in parole
revocations.

The first step in sustaining and continuing these
gains is to ensure that the upcoming budget prioritizes proven community
corrections approaches that hold offenders accountable and put them on
the right track at a fraction of the cost of prison. Consider that in
Texas probation costs less than $3 a day, with half of that paid for by
offender fees, while prison is more than $50 per day. Even if a more
intensive community corrections approach like a problem-solving court or
GPS is needed to safely supervise certain offenders, the cost is still a
fifth of prison. Fortunately, the Texas prison population has declined
from its high of nearly 156,000 just a few years ago to 151,191 as of
the end of the 2012, some 4,384 fewer beds than the system’s operating
capacity. Accordingly, legislators should budget for closing additional
prisons and reinvest some of the savings in the proven approaches that
have contributed to this surplus of beds and simultaneous drop in crime.

Lawmakers
can do even more in the next budget by implementing Senate Bill 1055,
which was unanimously enacted last session. This measure authorizes
counties to voluntarily enter into an agreement with the state to reduce
prison commitments of low-level offenders whereby the community
receives a share of the state’s savings on lower prison costs, partly
based on the county’s performance in reducing probationers’ recidivism
rate and increasing the share of probationers who are current on their
victim restitution. The next budget should implement SB 1055 by
reallocating to participating counties some of the savings from prison
closures achieved through the implementation of the local commitment
reduction plans described in the legislation. In 2010 — the first fiscal
year of Texas’ Juvenile Commitment Reduction Program — juvenile
commitments to state lockups fell 36 percent, saving taxpayers at least
$114 million, while juvenile crime continued to decline. Senate Bill
1055 provides that counties can use the share of the state’s savings
that they receive for community-based programs, which include
problem-solving courts, specialized probation caseloads, electronic
monitoring and short-term use of the county jail to promote compliance.

Legislators
should also establish a presumption of probation with mandatory
treatment for first-time drug offenders who possessed less than 4 grams —
about one-seventh of an ounce — of the outlawed substance. One version
of this is Senate Bill 90. Those convicted of drug delivery are
excluded, as are drug possession offenders who had a previous conviction
for any other offense beyond a traffic violation.

The judge would
determine whether the offender would go to a residential facility,
which could be the state’s six month secure Substance Abuse Felony
Punishment Facilities (SAFPFs), or day treatment, or a combination of
both. If “three hots and a cot” is tough on crime, is it not tough on
crime to force a drug addict to be in a program where he is tested
regularly and must attend treatment and cover the cost to the extent
possible, hold a job, pay child support and face jail time for repeated
failures to comply?

Under this proposal, such an offender could
still be initially imprisoned upon a documented judicial finding of
danger to the community. Moreover, those who fail to comply face
revocation to prison for up to 10 years. The LBB estimated this approach
would save $500 million over five years, even considering the
additional probation and drug treatment costs incurred.

Policymakers
must also overhaul the state jail system, which houses those with
offenses such as possessing less than a gram of drugs, writing hot
checks and prostitution. It is plagued by a 60 percent recidivism rate,
significantly higher than the recidivism rate of prisons that hold more
serious offenders. To achieve better results, the law should be amended
to return to the original model where state jail time must be a
condition of probation. Accordingly, instead of being discharged without
supervision after serving an average of eight months, state jail
inmates would go on probation, where they would report to an officer,
take drug tests and be required to attend mental health and substance
abuse treatment and hold a job, while also being eligible for resources
that promote reintegration into society.

Another priority is
legislation allowing prosecutors to refer certain cases to
victim-offender conferencing. Consider if an 8-year-old in your
neighborhood stole something out of your garage. Rather than go through
months of a protracted legal process, you as the victim could choose
this restorative approach which typically involves the offender taking
responsibility for his conduct, making an apology, providing monetary
and/or service restitution and performing community service. The
defendant must also choose conferencing, as he waives his right to trial
and appeal. Some 89 percent agreements are met, but if not, the case is
prosecuted. Research shows this approach increases restitution
collections, enhances victim satisfaction and reduces recidivism, as
offenders come to understand they did not just violate the words of a
statute but hurt other individuals. It also conserves judicial,
prosecutorial and indigent defense resources.

Furthermore,
lawmakers must continue recent progress in driving down both the
juvenile crime rate and the number of youths in state lockups. This
requires prioritizing funding for the Commitment Reduction Program
through which counties have implemented evidence-based approaches that
involve juvenile probation officers and treatment personnel coming into
the home to strengthen the family’s capacity for providing discipline.
Furthermore,
it’s time to overhaul ineffective zero-tolerance policies that
unnecessarily remove students from school and funnel many of them into
the juvenile and criminal justice systems. Each year, hundreds of
thousands of students are issued criminal citations and sent to
municipal courts for such routine misbehavior as making “unreasonable
noise,” even though such citations don’t improve behavior. Further,
under zero-tolerance policies, a principal has no choice but to suspend a
high school student with an empty beer can in his car within 300 feet
of the campus. Policymakers must administer a dose of common sense and
local discretion to remedy these flawed policies.

Additionally,
let’s rein in the number and scope of the state’s 1,700 criminal
offenses, and avoid adding yet more superfluous crimes. Some 1,500 of
these offenses are outside of the Penal Code where the traditional
crimes are found. Most of these relate to ordinary business activities.
For example, Texas has 11 felonies concerning the harvesting of oysters.
In a January report, the LBB recommended that the Legislature create a
sentencing commission that would regularly review the voluminous
criminal laws to identify those that are unnecessary and ensure that
penalties for those that are needed are commensurate with the relative
gravity of the conduct. The recommendations of the commission, which
would include key stakeholders such as judges, prosecutors, criminal
defense lawyers and victims’ advocates, would then go to the
Legislature. Unfortunately, without such a mechanism to regularly review
a body of criminal laws too vast and complex to be comprehensively
examined during the fast-moving legislative session, we will be stuck on
auto-pilot in the grow-government mode as the Legislature adds an
average of 39 new offenses each session and dozens more penalty
enhancements without repealing or reining in any laws.

We also
recommend adoption of the rule of lenity. This approach to interpreting
criminal laws specifies that, if it is unclear whether the conduct at
issue is clearly prohibited, the benefit of the doubt goes to the
defendant. This concept is consistent with the conservative emphasis on
strictly interpreting the law as well as the traditional formulation
that a crime consists of a guilty mind combined with a bad act. To have a
guilty mind, or mens rea, a person must have had fair warning that
their conduct was criminal. If a statute is unclear, it by definition
does not provide that fair warning.

These recommendations flow
from the fundamental principles of limited government and personal
responsibility and the need for policymakers to apply the same scrutiny
to criminal laws and spending on corrections as other policy areas.
Public safety is one of the few core roles of government, but let’s
distinguish between those offenders we are afraid of and those we are
simply mad at. Texas has made remarkable progress over the last several
years in reducing both crime and incarceration, and there is plenty more
to be done this session to take a few more bites out of crime and a few
less dollars out of taxpayers.

4 comments:

Anonymous
said...

I hope the Appropriations committee reads this. Marc's short piece on juvenile issues fails to mention that the LBB has suggested cuts on bothe ends of the spectrum, probation side and state facility side. If we want to keep the ball rolling the cuts need to stop somewhere and sometime. The Zero Tolerance part is right on the money.

Instead of giving the money to the Counties, it should go to Adult Probation. We have been getting paid the same for the last 30 years for supervising felons and misdemeanor cases! We are seeing more offenders placed on Pre-Trial diversion (DWI cases) and don't get a DIME from CJAD for those cases! Our health insurance is eating us alive!

Mark is on target. However, SB 1055 will require a philosophical change for all components of the justice system for it to work. Judges and probation officers are just one variable. This includes the hard line prosecutor, whose general response to all offense bargaining is "Prison is the answer, what was the question?" Plea bargains still comprise a very high percentage of case dispositions. In a way, decreasing commitments to ID even more than has been practiced in the past 10 years is going to be a hard sell based on current philosophies. But it's one I hope comes to pass.

We have seen dramatic changes in the criminal justice profession since 2003. I want to think that we are definitely having a positive impact on criminal activity since we have a 4,000 bed surplus in TDCJ. Something seems to be working. Hopefully, treatment and intervention is taking the place of just serving time.

Yes, Mark is well on target; however, having victims determine the leniency is not an equitable choice, as this would not be an unbiased 3rd party weighing the positive vs. the negative...don't forget the judicial system is a checks and balance of our freedoms.

This misplacement of power or judgment, would be against civil rights. The judgments must be impartial, educated and reasonable, which many victims would not necessarily be any of these.

The zero tolerance has cost money in many instances, such as the empty beer can example, the "assault charges" brought by parents with child and juvenile instances.

I totally agree that treatment, ankle monitors, weekend and/or evening jail would be an answer to a lot of $dollars being spent unnecessarily. Let families continue to help and pay for offenders food, housing, medical expense.

Even incarcerated offenders could be partially funded by family resources, health insurance paying for co-pays, prescriptions, and some medical treatments as secondary providers. This is of major concern to me; why are families not allowed to provide medications and vision and hearing and dental devices needed for inmates? My insurance would cover 80/20 using the UTMB providers that Texas uses primarily or tax-free dollars at least.

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